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August 2, 1995

 

 

Mr. Alan Berman, Esq.
Office of Town Attorney
Town of Ramapo
237 Route 59
Suffern, NY 10901

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear Mr. Berman:

I have received your letter of July 31 concerning a request directed to the Town of Ramapo Police Department under the Freedom of Information Law. The request involves:

"1. The number of civilian complaints filed against police officers in 1994 and 1995 and copies of all the complaints.

2. The number of officers suspended, placed on limited duty or dismissed as a result of disciplinary actions in 1994 and 1995.

3. The names of all officers dismissed or suspended in 1994 and 1995.

4. Copies of all notices of claim concerning potential lawsuits against the Department, Town and any officer."

In relation to the foregoing, you raised the following questions:

"a. Is the Town obligated to provide access to the results of disciplinary actions involving police officers?

b. Since the Town does not have a list of notices of claims or civilian complaints is the Town obligated to search all its records to determine whether such records do exist?

c. If the Town were to release copies of complaints against Town Police Officers as well as results of disciplinary proceedings could the Town be held liable to the individual police officer in respect to violation of their rights under the protections afforded to them by the Freedom of Information Law?"

In this regard, I offer the following comments.

First, with respect to question "b", it appears that the issue in terms of the Freedom of Information Law is whether the request "reasonably describes" the records sought as required by §89(3) of the Law. It has been held that a request reasonably describes the records when the agency can locate and identify the records based on the terms of a request, and that to deny a request on the ground that it fails to reasonably describe the records, an agency must establish that "the descriptions were insufficient for purposes of locating and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

Although it was found in the decision cited above that the agency could not reject the request due to its breadth, it was also stated that:

"respondents have failed to supply any proof whatsoever as to the nature - or even the existence - of their indexing system: whether the Department's files were indexed in a manner that would enable the identification and location of documents in their possession (cf. National Cable Tel. Assn. v Federal Communications Commn., 479 F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability under Federal Freedom of Information Act, 5 USC section 552 (a) (3), may be presented where agency's indexing system was such that 'the requested documents could not be identified by retracing a path already trodden. It would have required a wholly new enterprise, potentially requiring a search of every file in the possession of the agency'])" (id. at 250).

In my view, whether a request reasonably describes the records sought, as suggested by the Court of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing or record-keeping system. In Konigsberg, it appears that the agency was able to locate the records on the basis of an inmate's name and identification number.

I am unaware of the manner in which the Town maintains or files its records. If civilian complaints are maintained in a file or system of records containing complaints, the records could likely be readily be found. On the other hand, if complaints are filed only under the name of the police officers who are the subjects of the complaints, locating the complaints might involve a review of each officer's file. In that event, whether the request "reasonably describes" the records sought is questionable. I note that I am unaware of the number of officers employed by the Town. If the number employed is several dozen rather than several hundred, the task of locating complaints may not be unsurmountable or unreasonable in view of the general intent of the Freedom of Information Law.

With regard notices of claim, as I understand §50-f of the General Municipal Law, the Town is required to maintain a record of all such claims. If that is so, the record should be readily retrievable. Specifically, subdivision (1) of §50-f states in relevant part that:

"Wherever a notice of claim is required by section fifty-e of this chapter as a condition precedent to the commencement of an action or proceeding against a municipal corporation or any authority or commission heretofore or hereafter continued or created by the public authorities law, or any officer, appointee or employee thereof, every such municipal corporation and every such authority or commission shall make and keep a record, numbered consecutively and indexed alphabetically according to the name of the claimant, of each notice of claim filed in compliance with such requirement and of the disposition of the claim so noticed...The record shall be made and kept by an officer or employee designated for that purpose by the by the governing body of such municipal corporation or of such authority or commission...The record of each claim shall be preserved for a period of five years after the date of the final disposition thereof."

Based on the foregoing, I would conjecture that it would not be difficult to locate the claims that are the subject of the request.

Second, with regard to question "a", based on the ensuing analysis, I believe that results of disciplinary actions involving police officers are available only when there are final determinations indicating that officers have engaged in misconduct; if a charge or an allegation is found to be without merit, the records may in my opinion be withheld.

By way of background, as you are aware, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law.

The initial ground for denial, §87(2)(a), pertains to records that "are specifically exempted from disclosure by state or federal statute." One such statute is §50-a of the Civil Rights Law. In brief, that statute provides that personnel records of police and correction officers that are used to evaluate performance toward continued employment or promotion are confidential. It has been found that the exemption from disclosure conferred by §50-a of the Civil Rights Law "was designed to limit access to said personnel records by criminal defense counsel, who used the contents of the records, including unsubstantiated and irrelevant complaints against officers, to embarrass officers during cross-examination" [Capital Newspapers v. Burns, 67 NY 2d 652, 568 (1986)].

In another decision, which dealt with unsubstantiated complaints against correction officers, the Court of Appeals held that the purpose of §50-a "was to prevent the release of sensitive personnel records that could be used in litigation for purposes of harassing or embarrassing correction officers" [Prisoners' Legal Services v. NYS Department of Correctional Services, 73 NY 2d 26, 538 NYS 2d 190, 191 (1988)].

Aside from §50-a, other grounds for denial appearing in the Freedom of Information Law are pertinent to consideration of rights of access.

For instance, §87(2)(b) of the Freedom of Information Law permits an agency to withhold records to the extent that disclosure would constitute "an unwarranted invasion of personal privacy." Although the standard concerning privacy is flexible and may be subject to conflicting interpretations, the courts have provided substantial direction regarding the privacy of public employees. Based upon judicial interpretations of the Freedom of Information Law, it is clear that public employees enjoy a lesser degree of privacy than others, for it has been found in various contexts that public employees are required to be more accountable than others. Further, the courts have found that, as a general rule, records that are relevant to the performance of a public employee's official duties are available, for disclosure in such instances would result in a permissible rather than an unwarranted invasion of personal privacy [see e.g., Farrell v. Village Board of Trustees, 372 NYS 2d 905 (1975); Gannett Co. v. County of Monroe, 59 AD 2d 309 (1977), aff'd 45 NY 2d 954 (1978); Sinicropi v. County of Nassau, 76 AD 2d 838 (1980); Geneva Printing Co. and Donald C. Hadley v. Village of Lyons, Sup. Ct., Wayne Cty., March 25, 1981; Montes v. State, 406 NYS 2d 664 (Court of Claims, 1978); Powhida v. City of Albany, 147 AD 2d 236 (1989); Scaccia v. NYS Division of State Police, 530 NYS 2d 309, 138 AD 2d 50 (1988); Steinmetz v. Board of Education, East Moriches, Sup. Ct., Suffolk Cty., NYLJ, Oct. 30, 1980); Capital Newspapers v. Burns, supra]. Conversely, to the extent that records are irrelevant to the performance of one's official duties, it has been found that disclosure would indeed constitute an unwarranted invasion of personal privacy [see e.g., Matter of Wool, Sup. Ct., Nassau Cty., NYLJ, Nov. 22, 1977].

Another ground for denial of significance, §87(2)(g), states that an agency may withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

In terms of the judicial interpretation of the Freedom of Information Law, as suggested earlier, in situations in which allegations or charges have resulted in the issuance of a written reprimand, disciplinary action, or findings that public employees have engaged in misconduct, records reflective of those kinds of determinations have been found to be available, including the names of those who are the subjects of disciplinary action [see Powhida v. City of Albany, 147 AD 2d 236 (1989); also Farrell, Geneva Printing, Scaccia and Sinicropi, supra]. Three of those decisions, Powhida, Scaccia and Farrell, involved findings of misconduct concerning police officers. Further, Scaccia dealt specifically with a determination by the Division of State Police to discipline a state police investigator. In that case, the Court rejected contentions that the record could be withheld as an unwarranted invasion of personal privacy or on the basis of §50-a of the Civil Rights Law.

It is also noted, however, that in Scaccia, it was found that although a final determination reflective of a finding of misconduct is public, the records leading to the determination could be withheld. Further, when allegations or charges of misconduct have not yet been determined or did not result in disciplinary action, the records relating to such allegations may, in my view, be withheld, for disclosure would result in an unwarranted invasion of personal privacy [see e.g., Prisoners' Legal Services, supra; also Herald Company v. School District of City of Syracuse, 430 NYS 2d 460 (1980)]. Therefore, to the extent that charges are dismissed or allegations are found to be without merit, I believe that the records related to and including such charges or allegations may be withheld.

Lastly, with respect to question "c", for reasons described in the preceding commentary, I do not believe that complaints against police officers are public; it is my view, however, that if the result of a disciplinary proceeding is a determination that an officer engaged in misconduct, the determination, including the penalty imposed, must be disclosed. While I am not an expert concerning issues involving municipal liability, an individual police officer's rights cannot in my opinion be violated by means of an infringement of "rights under the protections afforded...by the Freedom of Information Law", because that statute does not provide any such protections. It is noted that the Freedom of Information Law is permissive. While an agency may withhold records in appropriate circumstances, it is not required to do so. As stated by the Court of Appeals:

"while an agency is permitted to restrict access to those records falling which the statutory exemptions, the language of the exemption provision contains permissible rather than mandatory language, and it is within the agency's discretion to disclose such records, with or without identifying details, if it so chooses" [Capital Newspapers v. Burns, 67 NY 2d 562, 567 (1986)].

Therefore, the Freedom of Information Law authorizes an agency to protect privacy, for example, in appropriate circumstances; it does not compel an agency to do so. That is not to suggest that police officers have no statutory protection; the protection afforded police officers in my opinion would be conferred by §50-a of the Civil Rights Law rather than the Freedom of Information Law. When §50-a prohibits disclosure, it would appear that a disclosure in violation of that statute could give rise to a cause of action.

I hope that I have been of assistance. Should any further questions, please feel free to contact me.

Sincerely,

 

Robert J. Freeman
Executive Director

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